Delhi District Court
Vide Notification No. ... vs S. Mani And Others 2005 Llr 737 on 10 January, 2008
Page numbers
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS: SHAHDARA : DELHI
ID NO. 960/2006 Date of Institution : 06.10.2003
Award Reserved on : 13.12.2007
Date of Award : 10.01.2008
BETWEEN
SH. BHANU PRAKASH SHARMA, S/O SH. GAJRAJ SHARMA
C/O DELHI KAPDA KARAMCHARI UNION
2285, KAUREA PUL, DELHI - 110006.
AND
M/s DAVIS CHEMICAL PVT LTD.
T170, MALKAGANJ,
DELHI7.
AWARD
1. Vide Notification No. F.24(1634)/2003/Lab./1466367 dated 26.09.2003
Secretary (Labour), Delhi Administration has referred dispute raised by the
claimants to this court for adjudication under section 10(1)(c) and 12(5) of the
Industrial Disputes Act, 1947 (hereinafter called the Act) with the following
terms of reference :
TERMS OF REFERENCE
" Whether the services of Sh. Bhanu Prakash Sharma S/o Sh.
Gajraj Sharma have been terminated by the management illegally
and/or unjustifiably, and if so, to what relief is he entitled and
what directions are necessary in this respect ?
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2. Facts pleaded by the applicant in statement of claim are as follows :
He was working with the management since 1997 as 'Field Salesman'
at the wages of Rs.2000/ per month plus 5% commission. He worked honestly
and diligently and never gave any cause of complaint to the management.
Management did not issue him appointment letter, nor paid him minimum
wages, leave encashment, overtime allowance. He was also not paid
commission for the last two years. When he demanded the same management
withheld his earned wages w.e.f. 01.08.2002 to 15.11.2002 and terminated his
services on 15.11.2002 without any notice or payment in lieu of notice which is
violative of section 25F of the Act.
He sent a demand notice to the management by registered post on
30.11.2002 demanding reinstatement and payment of his dues. Management did
not reply to the notice. Conciliation proceedings failed because management did
not participate in the same. He is unemployed since the date of termination of
his services and is dependent on his relatives. He has prayed for his
reinstatement with full back wages.
3. Management contested his claim vide its written statement. It is pleaded that
the management is having its office at T1701, Malka Ganj Road, Subzi Mandi,
Delhi since its inception whereas address mentioned in the reference order is T
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170, Malka Ganj Road, Delhi and in statement of claim also the address
mentioned is T170, Malka Ganj Road, Delhi. It is further stated that even
conciliation proceedings were held at the wrong address. Consequently, the
management was not given an opportunity to put their case before the
conciliation officer and dispute has been referred for adjudication in a
mechanical manner without even verifying the correct address of the
management.
It is denied that the claimant was ever employed with the
management. It is stated that there is no relationship of employer and employee
between the parties and as such there is no question of termination of his
services or denial of statutory benefits to him. It is denied that any demand
notice was received by the management.
4. Following issues were framed :
1. Whether the applicant is a workman of the respondent/mgt. ?
2. As per terms of Reference.
3. Relief.
5. Claimant examined himself as WW1 and thereafter closed his evidence.
Management examined Sh. Adarsh Tandon, its Director as MW1 and thereafter DocInformation:SubjectID NO.960/2006 Page numbers closed its evidence.
6. I have carefully perused the material available on the record. ISSUE NO. 1 & 2
7. Claimant has alleged that he worked with the management since 1997 and his services were unlawfully terminated on 15.11.2002 without any notice or payment in lieu thereof which makes termination void ab initio being in violation of Section 25F of the Act.
8. Section 25F of 'The Industrial Disputes Act, 1947' reads as under :
"25F. Conditions precedent to retrenchment of workmen No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous DocInformation:SubjectID NO.960/2006 Page numbers service) or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government (for such authority as may be specified by the appropriate Government by notification in the Official Gazette) The retrenchment as envisaged under Section 25F is defined under Section 2(oo) of the Industrial Disputes Act, Which reads as under 2(oo) 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under the stipulation in that behalf contained therein or)
(c) termination of the service of a workman on the ground of continued illhealth."
9. In Manager, R.B.I., Bangalore vs. S. Mani and others 2005 LLR 737 DocInformation:SubjectID NO.960/2006 Page numbers Hon'ble Apex Court held as follows :
"15. The provisions contained in Section 25F of the Act are required to be complied with if the workman concerned had completed 240 days of service in a period of 12 months preceding the date of termination."
10. In Bhogpur Cooperative Sugar Mills Ltd. v. Harmesh Kumar 2007 LLR 183 SC the Hon'ble Apex Court held that :
"For applicability of section 25 F of the I.D. Act, the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination."
11. Onus is on the claimant to prove that he rendered continuous service of at least 240 days with the management in a year preceding the date of alleged termination of his services as is clear from the following judgments :
12. In Ravi N. Tikku v. Deputy Commissioner (S.W.) & Ors. 2006 LLR 496 recently our own Hon'ble High Court discussed the issue of onus of proof of DocInformation:SubjectID NO.960/2006 Page numbers employment and observed as follows :
"It has been repeatedly held that so far as an industrial claim is concerned, its procedure is guided by the general principles of the law of evidence that he who asserts must prove. Based on the rule of Roman Law - 'el incumbit probatio, qui dicit, non qui negat' - the burden of proving a fact rests on party who substantially asserts the affirmative of the issue and no upon the party who denied it, for a negative does not admit of direct and simple proof. It is well settled that the onus and burden of proof of establishing the employment is consequently on the workman. The workman can discharge the same by leading cogent and reliable evidence in respect thereof which could be oral or documentary. In the even of nonavailability of the same, he can very well cause the same to he summoned from the authorities concerned or the management itself and place the same before the industrial adjudicator."
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13. In Range Forest Officer v. S.T. Hadimani (2002) 3 Supreme Court Cases 25 the Apex Court held :
".........in our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year proceeding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
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12. In case of Surendra Nagar District Panchayat and Another Vs Jethabhai Pitamberbhai (2005) 8 Supreme Court Cases 450, the Hon'ble Apex Court observed as follows :
"The burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce evidence apart from examining himself to prove the factum of his being in employment of the employer... From the tenor of the judgment of the Labour Court and the High Court, it is apparent that the judgments have proceeded on the premise as if the burden of proof lies on the employer to prove that the employee had not worked with him for 240 days in the preceding year immediately before the date of his termination. The Labour Court and the High Court committed an error in placing the burden on the employer to prove that the workman had not worked for 240 days with the employer."
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13. In Manager, R.B.I. (Supra) Hon'ble Apex Court held as follows :
"28. The initial burden of proof was on the workmen to show that they had completed 240 days of service."
14. In Dhyan Singh and Raman Lal 2001 (88) FLR 230 it was held that :
"To prove a contract of employment, there has to be a direct evidence to show some nexus between the claimant and the respondent. This can be of any kind such as appointment letter, monthly payment slip, deduction of PF, payment of any dues which would show that he was in the employment, any correspondence wherein the respondent has admitted that claimant was in his employment. In substance, the courts are in favour of documentary evidence to record a definite finding on such type of issue. They are the best piece of evidence for coming to a conclusion one way or other."
15. How the worker can prove that he was the workman of the respondent management was clarified by our own Hon'ble High Court in the case of M/s Automobile Association of Upper India vs. P.O. Labour Court II & Anr. 2006 LLR 851 wherein it was held that workman can prove his employment by production of appointment letter, written agreement or by circumstantial DocInformation:SubjectID NO.960/2006 Page numbers evidence which can be in the nature of attendance register, salary register, leave record, deposition of PF contribution, employees state insurance contribution. It was also held that the workman can call upon the management to produce these records and on failure of the management to produce such record, an adverse inference can be drawn against the management.
16. Claimant claims to have worked with the management for a long tenure of about five years. Neither he himself placed on record any document to prove his employment nor he called upon the management to produce any document which might show that he ever worked with the management.
17. Documents placed on record by the workman do not in any way show the relationship of employer and employee between the parties. His authorized representative has referred to documents ExWW1/C to ExWW1/P which are ST35 forms reminders signed by the accountant of the management. These documents were shown to MW1 in his cross examination. He stated that these were sent by post to the parites for submission of sales tax forms. These documents do not, in any way, show that the claimant was a workman of the management.
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18. It is therefore not proved that applicant was ever employed by the management. In absence of any such relationship there is no question of unlawful termination of his services. As such both the issues are decided against the claimant and in favour of the management. RELIEF
16. In view of the aforesaid claimant is not entitled to any relief. Reference is answered accordingly. Appropriate government be informed. File be consigned to record room.
Announced in the open PRESIDING OFFICER
court today. LABOUR COURT NO. XIII
Date : 10.01.2008 KARKARDOOMA COURTS
DELHI
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